Tag: pork barrel scam in the philippines

The Filipina, in general, has not received the international accolade she deserves; especially not with the impressions that certain women Filipinos — Napoles and the multi-billion tax scam is the latest — provide the world. So when Megan Young was crowned Ms. World 2013, her achievement meant a lot, politically, to local women back home. Ms. Young’s victory, using economics terminology, brings positive spill-over effects for Filipino women. So it’s good to see that many went out to welcome Ms. Young on her homecoming parade.

via channelnewsasia

On one hand, riding on Ms. Young’s victory is not quite the courageous act when seen against what Filipinos (and women Filipinos) at home are doing (and did) in the call for internal reforms within their government. The March Against Corruption, most recently held on Ayala Avenue, where Ms. Young’s homecoming parade took off, did not have the same voluntary and enthusiastic response from Filipinos.

This response isn’t confined to the Ms. Young’s homecoming parade vs. The March Against Corruption. This is the common Filipino response everywhere: we’d rather that we show ourselves in one-time street dances and funeral parades than in events that would mean a better Philippines in the long term. We’d rather discuss what to cook and dress for the festivities. Only a handful, in any given barangay (village), will turn out to participate in collective discussions about what to do to make the barangay (eventually, the nation) a better place.

History tells us that great nations were (and are being) made because their citizens willingly and voluntarily sacrifice short term indulgences if it meant wealth and all the best things in the long term.

It has been seen that the dangers incident to a representative democracy are of two kinds: danger of a low grade of intelligence in the representative body, and in the popular opinion which controls it; and danger of class legislation on the part of the numerical majority, these being all composed of the same class.

Let’s focus on class legislation by the numerical majority in the context of this yet-to-be properly addressed pork barrel scam.

Apparently, members of the Philippine Senate and Congress are of the same class, cut from the same cloth. What’s even more dangerous is that otherwise good members decided to clam up hence effectively beefing up the strength of this class.

The crises we’re faced now, today, are the remains of the past. This is not the first time corruption and plunder have cropped up but when these did years ago nothing was done about it. Or if there was, it was superficial, not really institutional change. So unless we do something substantial about these crises now – and do it right this time – these will crop up again another time and then it’d really obliterate us all. The longer we procrastinate the more work will build up the more it will cost us, but we know that already. We see and experience it, for instance, in the perennial flooding of our streets and highways. Surely we don’t want the mistakes in that sector replicated in, and drown, our political system?

Bobit Avila, columnist at Philippine Star writes

Last June 8 the Catholic Bishops Conference of the Philippines (CBCP) the national consecration of the Philippines to the Immaculate Heart of Mary in all the basilicas, churches and chapels all over the Philippines seeking our Blessed Mother’s maternal protection, and suddenly in less than three months, the nation is once again in turmoil! This is a divine cleansing to prepare our nation for the up and coming International Eucharistic Congress in the year 2016.

This nation is 80% Catholic and Catholic teaching says if you dedicate yourself to Mary (or her son, Jesus) you go through a sort of cleansing because Mary (and Jesus) are without sin. In other words, the Mary (or Jesus) cannot be in league with the Devil. We can’t be praying for Mary’s protection without also expecting a response from her, can we? Well, this is the response. These crises we’re facing now are unresolved issues of our past – little imps then, full-fledged devils now – which we’ve continually denied and put off but we’re being forced to flush out . And funny how Fate deems that another Aquino is in Malacanang. Since many in the country believes in karma, this turn of events would only be natural. Change was what Ninoy and Cory were after and not much change happened during their time. In fact, Ninoy died fighting the man, the President, who was deaf to his demands for change. Today is the best time to make that dream of change a reality for all Filipinos.

There’s now again a murdered journalist. Government vowed to bring him and his family justice. The massacre of 30 journalists in 2009 in Maguindanao – condemned by the international press community – allegedly by the local elected official then is still on pre-trial.

Prior to the Bureau of Customs Expose, there was the MRT II Project USD30M extortion attempt involving the President’s sister and brother-in-law, reported to authorities by no less than the Ambassador of Czechoslovakia. There has been no updates since.

Back to the Pork Barrel Scam, the highest public officials in the land are scurrying to provide Napoles the most comfortable “prison cell” in the name of security and health for one individual, a “high profile” criminal suspect at that. Meantime, thousands of squatters on the Metro’s waterways who are being relocated on sites miles away from their places of work (thereby co-opting their economic security and consequently mental health) were to be arrested if they returned. Why do I feel their arrest won’t be as accommodating as the treatment given to Napoles?

There’s a lot I’ve in mind to say to all these but WTF is at the top. It is getting more and more difficult everyday to reconcile realities with the constitutional provision that this country is a democratic republic.

…pathetic government compensation scheme…is the main reason honest bureaucrats are getting harder to find these days.

– Butch del Castillo, Columnist, Business Mirror

I find this connection faulty (although I’m also for a review of the current government pay scheme) because there are many brilliant young people who are graduates of top schools working in national and local government units and national government agencies whose compensations are “pathethic” yet are honest and diligent workers.

Civil service is not the job for those who want to be millionaires or billionaires. Neither is development or I/NGO work. My colleagues and I, when I was still employed, we liked to ask each other, as a joke, how come heaven hasn’t turned us into millionaires considering the sacrifices we put in in the name of poverty eradication etc. But we know the answer, of course. Our work is funded by donors’ money and it is pathetic to even expect to be paid in the millions out of that. Our donors are varied but many are ordinary folks, school children even, who on their own donate part of their lunch money to causes supported through our organization. And because it is their money they want and expect to know where their money went to and did it bring about the results we told them it would? Similarly, government is run on people’s money and not every tax-paying Juan is a CEO or a corporation (and even if they are every taxpayer wants to know where and how their money was spent). If bureaucrats despite this fact expects and go on to make private millions from people’s money, one thing can only be said: their thought processes are fucked up.

What we’re seeing now is too much focus on Napoles. Let us remember that the primary duty bearers over public funds in this case the PDAF or pork barrel are public officials (they were the ones audited by COA). These funds wouldn’t have been channeled to conduits without their imprimatur. Investigation for plunder should therefore refocus on the named elected officials in the COA report. The law is clear that for them to say they don’t know what happened to the funds or didn’t know that the NGOs were fake is tantamount to negligence and exposes their gullibility both of which do not wash them off the guilt.

The people cannot anymore sit quietly by until these public officials are subjected to proper investigation by the competent court. The amount of funds stolen were too much and it had been going on far too long and all those time they did it while shaking our hands and smiling their best smiles — a far far worse crime than Marcos’ because by now they ought to have known better. Until now the named public officials have not substantially presented evidence to counter the audit reports other than verbal denials.

Section 1. Definitions. (a) For the purposes of this Act, a “public officer or employee” means any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise.

(b) “Other legitimately acquired property” means any real or personal property, money or securities which the respondent has at any time acquired by inheritance and the income thereof, or by gift inter vivos before his becoming a public officer or employee, or any property (or income thereof) already pertaining to him when he qualified for public office or employment, or the fruits and income of the exclusive property of the respondent’s spouse. It shall not include:

1. Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, the respondent’s spouse, ascendants, descendants, relatives, or any other person.

2. Property unlawfully acquired by the respondent, but transferred by him to another person or persons on or after the effectivity of this Act.

3. Property donated to the respondent during his incumbency, unless he can prove to the satisfaction of the court that the donation is lawful.

Section 2. Filing of petition. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. The Solicitor General, upon complaint by any taxpayer to the city or provincial fiscal who shall conduct a previous inquiry similar to preliminary investigations in criminal cases and shall certify to the Solicitor General that there is reasonable ground to believe that there has been committed a violation of this Act and the respondent is probably guilty thereof, shall file, in the name and on behalf of the Republic of the Philippines, in the Court of First Instance of the city or province where said public officer or employee resides or holds office, a petition for a writ commanding said officer or employee to show cause why the property aforesaid, or any part thereof, should not be declared property of the State: Provided, That no such petition shall be filed within one year before any general election or within three months before any special election.

The resignation, dismissal or separation of the officer or employee from his office or employment in the Government or in the Government-owned or controlled corporation shall not be a bar to the filing of the petition: Provided, however, That the right to file such petition shall prescribe after four years from the date of the resignation, dismissal or separation or expiration of the term of the office or employee concerned, except as to those who have ceased to hold office within ten years prior to the approval of this Act, in which case the proceedings shall prescribe after four years from the approval hereof.

Section 4. Period for the answer. The respondent shall have a period of fifteen days within which to present his answer.

Section 5. Hearing. The Court shall set a date for a hearing, which may be open to the public, and during which the respondent shall be given ample opportunity to explain, to the satisfaction of the court, how he has acquired the property in question.

Section 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be rendered within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both.

Section 11. Laws on prescription. The laws concerning acquisitive prescription and limitation of actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property unlawfully acquired by him.

Section 12. Penalties. Any public officer or employee who shall, after the effective date of this Act, transfer or convey any unlawfully acquired property shall be repressed with imprisonment for a term not exceeding five years, or a fine not exceeding ten thousand pesos, or both such imprisonment and fine. The same repression shall be imposed upon any person who shall knowingly accept such transfer or conveyance.

The two Republic Acts (on Plunder as well as this one) that in the Philippines, immunity as being bandied by Senators and members of Congress named in the COA report does not apply when the case is plunder, graft and corruption. This is why, again, as mentioned in earlier articles here, it is unacceptable to me as a citizen that the Senate is investigating itself (which all the more adds to the crime they are accused of) and worse, no one from the Executive or the Judiciary stopped the process. The law has named the Sandiganbayan as the independent body having jurisdiction over these cases. Also, it is unacceptable to many in the country, at least those who are following through the case, to see these named public officials still sitting in the hallowed halls of the Senate when the law is clear that they are to be suspended. Otherwise, we can all go to hell, literally, not just at its gates: lawlessness, failure of government to be representative, chaos.

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Section 1. Statement of policy.

— It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of
public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.

Section 2. Definition of terms. — As used in this Act, the term —

(b) “Public officer” includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

Section 3. Corrupt practices of public officers.

— In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.
(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

Section 4. Prohibition on private individuals.

— (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word “close personal relation” shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.
(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.

Section 8. Prima facie evidence of and dismissal due to unexplained wealth.
— If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses
evidently out of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. The circumstances herein above mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation wealth is completed. (As amended by BP Blg., 195, March 16,
1982).

Section 9. Penalties for violations.

— (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. Any complaining party at whose complaint the criminal prosecution was
initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing.
(b) Any public officer violating any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year and six months, or by both such fine and imprisonment, at the discretion of the Court.

The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. (Amended by BP Blg. 195, March 16, 1982).

Section 10. Competent court.

— Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan. (As amended by BP Blg. 195, March 16, 1982)

Section 11. Prescription of offenses. — All offenses punishable under this Act shall prescribe in fifteen years.

Section 12. Termination of office.

— No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery.

Section 13. Suspension and loss of benefits.

— Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title Seven Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whatever stage of execution and mode of participation, is pending in court shall be suspended from office. Should he be convinced by final judgement, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled
to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have been separated from the service has already received such benefits he shall be liable to restitute the same to the government. (As amended by BP Blg. 195, March 16, 1982).

— For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Chapter FourMALVERSATION OF PUBLIC FUNDS OR PROPERTY

Art. 217. Malversation of public funds or property; Presumption of malversation.

— Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos.

If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060).

The country does not lack in pertinent laws. A review of the salient points in RA 7080 renders the ongoing process in the plunder of the PDAF chaotic (e.g. IAGCC appears redundant given that the law has already the Sandiganbayan as the competent court having jurisdiction over cases of plunder; why wait for the ‘roomful of evidence’ to pile up when the law is clear that a pattern of the overt act is sufficient?; the Senate Committee investigation is an unnecessary layer to what should be the job of the Sandiganbayan who by virtue of this law has jurisdiction over Senators and members of Congress suspected for plunder.).

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Section 1. Definition of Terms. — As used in this Act, the term —
a) “Public Officer” means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract.

d) “Ill-gotten wealth” means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder; Penalties.

— Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.

Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (As amended by RA 7659, approved Dec. 13, 1993.)

Section 3.Competent Court.

— Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan.

Section 4. Rule of Evidence.

— For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire illgotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

Section 5. Suspension and Loss of Benefits.

— Any public officer against whom any criminal prosecution under a valid information under this Act whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.

Section 6. Prescription of Crimes.

— The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.